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Mortgages Flashcards

1
Q

Creation of Mortgages

What are the three types of legal mortgage pre-LCLRA 2009?

A

(i) Mortgage by Conveyance of Fee Simple
(ii) Mortgage by Demise
(iii) Mortgage by Assignment or Sub-Demise

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2
Q

Creation of Mortgages - Legal Mortgage of Unregistered Land Pre-LCLRA 2009

(i) Mortgage by Conveyance of Fee Simple

A

conveyance of the fee simple to a lender (mortgagee) by a borrower (mortgagor) in return for mortgage monies and subject to proviso for redemption i.e. a condition that the fee simple will be conveyed back to the mortgagor once monies, interest + charges repaid.

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3
Q

Creation of Mortgages - Legal Mortgage of Unregistered Land Pre-LCLRA 2009

(ii) Mortgage by Demise

A

A fee simple holder transfers a leasehold interest to the lender in return for mortgage monies + subject to proviso for cessar on redemption i.e. that the lease will be surrendered once the mortgage monies, interest and associated charges have been paid.

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4
Q

Creation of Mortgages - Legal Mortgage of Unregistered Land Pre-LCLRA 2009

(iii) Mortgage by Assignment or Sub-Demise

A

By assignment means the holder of a leasehold interest (lessee) may assign his entire leasehold interest to the mortgagee in return for mortgage monies + subject to proviso for redemption. By sub-demise means the lessee may sub-let the leasehold interest to the
mortgagee in return for mortgage monies and subject to proviso for cessar on redemption.

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5
Q

Creation of Mortgages - Legal Mortgage of Unregistered Land Post-LCLRA 2009

S.89 LCLRA 2009

A

A legal mortgage of land may only be created by a charge by deed and such a charge is referred to as a mortgage. This applies to both registered and unregistered land. pre-2009 methods obsolete.

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6
Q

Creation of Mortgages - Equitable Mortgage of Unregistered Land

What are the three ways?

A

(i) Mortgage of Equitable Interest
(ii) Mortgage on Foot of an Agreement for a Mortgage
(iii) Mortgage Implied from the Deposit of Title Deeds

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7
Q

Creation of Mortgages - Equitable Mortgage of Unregistered Land

(i) Mortgage of Equitable Interest

A

Where a person only hols an equitable interest in the property, he can transfer it in return for a sum of money and subject to a proviso for redemption thus create a mortgage.

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8
Q

Creation of Mortgages - Equitable Mortgage of Unregistered Land

(ii) Mortgage on Foot of an Agreement for a Mortgage

A

Where the formalities required for a transfer of ownership haven’t been complied with, the law of equity may enforce it (memo/SOF/Part performance)

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9
Q

Creation of Mortgages - Equitable Mortgage of Unregistered Land

(iii) Mortgage Implied from the Deposit of Title Deeds

A

Where a landholder deposited the title deeds with intention of doing so by means of security and the mortgagee accepted the deeds and advanced monies on the basis of the deposit, equity will imply a mortgage exists between the parties.

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10
Q

Creation of Mortgages - Registered Charge over Registered Land Pre-LCLRA 2009

What is the statute and rule pre and post LCLRA 2009?

A

S.62 Registration of Title Act 1964: Rather than legal mortgages over registered land (can’t transfer ownership), what is created instead is a legal charge over the land that is registrable.
Post-LCLRA 2009: No change really. S.89 LCLRA 2009 is essentially the same as s.62 RTA 1964.

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11
Q

Creation of Mortgages -Equitable Title of Registered Land

What is the rule?

A

Equitable mortgages can be created over registered land by deposit of title deeds (mortgagee registers a caution on the title), by enforceable agreement to enter into a charge (specific performance) or by estoppel.
Post LCLRA-2009: No change. Equitable mortgages can still be created informally

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12
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession

General Rule?

A

The mortgagee is entitled to take possession in certain situations and the operation of this power depends on the kind of mortgage or charge enjoyed over the property

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13
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Legal Mortgage Over Unregistered Land

What is the rule?

A

Legal mortgagees over unregistered land have an entitlement to possession bc of their ownership and thus it’s accepted they cannot be restrained in takin possession, subject to it being adjourned by virtue of s.7 FHPA
1976 or s.32 Civil Partnership Act 2010. This is the case even where the mortgagor is not in default.

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14
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Equitable Mortgage

General rule?

A

Equitable mortgagees do not appear to have any inherent right to take possession of the mortgaged property, however they’re entitled to apply for an order for possession which can be granted if the court is satisfied that the money is owed on the land and possession would be appropriate in the circumstances.

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15
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Equitable Mortgage

Re O’Neill [1967] - Inherent jurisdiciton

A
  • Held the court can make an order for possession as part of its inherent equitable jurisdiction.
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16
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Equitable Mortgage

Bank of Ireland v Slattery [1911]

A
  • Possession granted to facilitate a sale that was being frustrated by interference of the mortgagor’s family.
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17
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Equitable Mortgage

Irish Permanent Building Society v Ryan [1950] - Pirce > Vacant Sale - Special Clause

A
  • HC held possession would be granted so that the property could get a higher price with vacant possession.
  • However, there was a special possession clause inserted in the mortgage.
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18
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Legal Mortgage over Registered Land

General rule and relevant provision?

A

As they’ve no ownership over the charged property, chargeants of reg land have no right to possession.
S.62(7) Registration of Title Act 1964: The chargeant may apply for possession once the mortgage money has become due i.e. once a payment has been missed + court can grant it “if it thinks so proper”.

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19
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Legal Mortgage over Registered Land

Bank of Ireland v Smyth [1993] - Sympathetic Factors

A
  • Held this section wasn’t so wide to permit as to permit the Court to take sympathetic factors into account
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20
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Legal Mortgage over Registered Land

Start Mortgages v Gunn [2011]

A

then dropped a bombshell

  • Dunne J held s.62(7) RTA was repealed without any replacement by s.97(2) LCLRA 2009.
  • This meant a lender had no right to apply under s.62(7) unless the principal monies became due before the 1st December 2009. If they became due after, even if mortgage created before 1st Dec 2009, no right!
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21
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Legal Mortgage over Registered Land

ACC Bank Plc v Kelly [2011] - Confirmed Gunn - Must be fair to lay lit’s

A
  • HC confirmed in relation to pre-2009 mortgages, the new regime of s.96-97 LCLRA 2009 will not apply retrospectively. Mortgage here created in October 2006. Thus s.97 had no application here.
  • Also noted courts must be fair where mortgagors have no legal representation.
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22
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Take Possession - Legal Mortgage over Registered Land

What provision remedied the difficulty created by Start Mortgages v Gunn and later confirmed in ACC BAnk Plc v KElly?

A

Due to the difficulties in enforcing mortgages then, S.62(7) RTA was reinstated by the LCLRA 2013 in respect of mortgages created prior to the commencement of that LCLRA 2009 (1st Dec 2009).

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23
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power of Sale

What three ways can the mortgagee exercise this power?

A

(i) Express Power of Sale:
(ii) Statutory Power of Sale
(iii) Sale by Order of the Court

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24
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power of Sale

Explain an express Power of Sale and include caselaw.

A

Where an express power of sale doesn’t violate the equitable principles of
mortgages, it will be enforced and will govern the mortgagee’s power of sale: IRBC v Drumm [2013]

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25
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power of Sale

Statutory power - s.19 Conveyancing Act 1881?

A

S. 19 Conveyancing Act 1881 has been repealed by the LCLRA 2009 but if a mortgage was created prior to 1st December 2009, the 1881 Act applies.
o This will only apply where the mortgage or charge was created by deed.
o A distinction has to be drawn between the power arising and the power becoming properly exercisable.
o The statutory power of sale under s.19 arises when mortgage monies become due, however the mortgagee won’t be entitled to exercised it immediately. S.20 Conveyancing Act 1881 must first be satisfied.

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26
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power of Sale

Statutory power - s.20 Conveyancing Act 1881?

A

o S.20 states the power of sale will be properly exercisable when one of three things has occurred:
(1) A written notice for repayment has been served and 3 months’ have passed without repayment; or
(2) Some mortgage interest is in arrears and has remained unpaid for two months; or
(3) The mortgagor is in breach of a covenant of the mortgage other than the covenant to pay the mortgage debt and/or interest thereon.
o Once the power of sale has arisen, the mortgagee can sell the property to a purchaser who will take it free from the mortgagor’s equity of redemption and without the need for an application to the court.
o If both s.19-20 have not been fulfilled, the purchaser acquires the mortgagee’s interest and is subject to the mortgagor’s equity of redemption.
o If, however, power of sale arose under s.19 but hasn’t become exercisable under s.20, the buyer receives it free of the equity of redemption unless he’s actual notice of the lack of compliance with s.29
Waring v London Assurance [1935]: Set out that unless the buyer has actual notice, can take free of equity red

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27
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power of Sale

Statutory power - s.21(3) Conveyancing Act 1881?

A

S.21(3) Conveyancing Act 1881: The proceeds of the sale must be applied in accordance with this:
o Prior incumbrances must be first paid off, after which the mortgagee will be a trustee for the balance purchase monies for the payment of all costs, charges and expenses associated with the sale.
o Once costs cleared, balance is paid to whoever entitled next either the mortgagor or subsequent mortgagee

28
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power of Sale

(iii) Sale by Order of the Court

A

Where the mortgage is equitable or has been created by deed prior to 1881 and
doesn’t include a provision for sale, the mortgagee can apply to the court for a sale.

29
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Appoint a Receiver

What is this and what three ways can give rise to it?

A

In some cases, the mortgagee may decide to appoint a receiver instead of selling the mortgaged property.
o This usually occurs in relation to commercial property and the receiver manages the property and ensures the monies raised from it go towards the payment of the mortgage debt.
o Just like the power of sale, power to appoint a receiver can arise in three ways:
(1) By the express terms of the mortgage
(2) Under ss.19-20 Conveyancing Act 1881; and
(3) By order of the court.

30
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Power to Appoint a Receiver

ACC Bank v Cunniffe [2017] - Unique nature of receiver

A
  • CA recognised the substantial case law establishes that the agency of a receiver is a unique one, not the usual commercial one. A receiver doesn’t hold the secured property as the agent of the mortgagor but realises the security for benefit of the mortgagee + so owes duties to the mortgagee as well as mortgagor.
31
Q

Enforcement Powers of Mortgagees in Pre-LCLRA 2009 Mortgages - Foreclosure

Explain foreclosure?

A

Foreclosure has fallen into disuse in Ireland, but was still technically available until the LCLRA 2009 abolished it in s.96(2). This was the cancelling of the mortgagor’s equity of redemption resulting in absolute ownership

32
Q

Enforcement Powers of Mortgagees in Post-LCLRA 2009 Mortgages

WHat rules were set out by LCLRA 2009 and LCLRA 2013?

A

S.89: The only way a legal mortgage can be created is by a charge by deed and this applies to both registered and unregistered land. This also abolishes the mortgagees right to consolidate.
S.96(2): Foreclosure has been abolished.
S.101(5): Obliges lending institutions to commence proceedings for orders for sale or possession in the CC as opposed to the HC. They’d been criticised for using the HC due to the costs on the mortgagors’.
S.103: Mortgagees have a statutory duty to obtain the best price reasonably possible when selling.
Owing to the controversy caused by Start Mortgages v Gunn [2011], the LCLRA 2013 was introduced and thus s.62(7) RTA applies to all mortgages created before 1st December 2009.

33
Q

The Mortgagor’s Rights

General Rule?

A

The equity of redemption, that’s retained by the mortgagor, results not only in a right to redeem the mortgage date (usually 6mths after the formation of the mortgage) but also in a very protective approach by the courts to
the mortgagor. Thus courts won’t let the mortgagor be overly restricted or clogged/fettered in exercising this.

34
Q

The Mortgagor’s Rights - Excluding or Postponing Redemption

Salt v Marquis of Northampton [1892] - Part of the property

A

Any attempts to limit the equity of redemption within the terms of the mortgage itself will be void. Thus, the courts have struck down mortgage terms that attempted to limit the equity of redemption.
- Court struck down a clause in the mortgage that attempted to confined redemption to only part of the mortgaged property as this was placing a limit on the equity of redemption.

35
Q

The Mortgagor’s Rights - Unfair or Unconscionable Terms

Cityland Property Holdings v Dabrah [1968]: Disproportionate interest

A

Contract said 2.9k loan costs 4.5k to repay. Fell into arrears after a yr as repayment sums became impossible expensive. Owner sued for payment of all moneys due w 5% interest on it. Held terms were unconscionable as they were out of prop to interest rates at time.

36
Q

The Mortgagor’s Rights - Consumer Credit Act 1995

General Requirement?

A

This requires mortgagees to provide warnings to prospective mortgagors about the repercussions of failing to comply with the terms of the mortgage, incl the risks that their home may be taken into possession + sold.

37
Q

The Mortgagor’s Rights - Consumer Credit Act 1995

Irish Bank Resolution Corporation v Drumm [2013] - Can dispense if just and equitable - care when choosing time of sale

A
  • P agreed to a number of hire purchase agreements with D. D defaulted.
  • One of the letters of notice served did not comply with the act i.e. it didn’t specify the sum to be paid for irremediable breaches of the agreement.
  • BUT held they would dispense with these requirements as it was just and equitable to do so given D was fully aware of his rights under the agreement and had spoken to a solicitor.
  • Also noted when selling shares, the mortgagee must exercise reasonable care choosing the time to sell
38
Q

The Mortgagor’s Rights - Unfair Terms in Consumer Contract Regulations 1996

AIB v Counihan [2016] - Assess if even if not asked

A

Regulations 3 and 6: an unfair term that wasn’t individually negotiated by a consumer is not binding
- Held a court, even if not asked to, should assess if a term in a mortgage that is within the scope of the Reg is unfair. This has led to unfair terms being raised in recent times as a defence.

39
Q

The Mortgagor’s Rights - Consumer Protection Code 2012

What does this provide? - Arrears Handling

A

This regulates how mortgage lenders deal with borrowers.
o The provisions on ‘arrears handling’ require certain steps to be taken to try resolve the borrower’s difficulties before enforcement action is taken.
o The lender must have in place written procedures for handling arrears.
o This is soft law, but courts have indicated they will take account of it

40
Q

The Mortgagor’s Rights - Code of Conduct on Mortgage Arrears 2013

What does this provide? - MARP, s.2 PIP -> PIA

A

This code has operated since 1st July 2013 and was issued by the Central Bank
o It provides how lenders should treat borrowers facing arrears on mortgages on their primary residence.
o It requires lenders operate procedures to explore alternatives to enforcement action. This includes the MARP (Mortgage Arrears Resolution Process).
o S.2 in possession for a principal private residence, court can adjourn proceedings for up to 2mths to let D consult w personal insolvency practitioner (PIP) to propose a personal insolvency arrangement (PIA)
o This is soft law but the courts have indicated they’ll take account of non-compliance in the event of a mortgagee seeking the help of the court in enforcing its security.

41
Q

The Mortgagor’s Rights - Code of Conduct on Mortgage Arrears 2013

Stepstone Mortgage Funding v Fitzell [2012] - CCMA 2013 can be relied on

A
  • P suing for possession of D’s principal private res. D claimed P failed to comply with MARP. Laffoy J held the code is not just soft law: borrowers can rely on it as a defence in proceedings.
  • If a lender was not obliged to demonstrate compliance with the codes, then the rights would be worthless!
42
Q

The Mortgagor’s Rights - Code of Conduct on Mortgage Arrears 2013

Irish Life and Permanent Plc v Duff [2013]

A
  • After a revised repayment schedule failed, I requested an updated standard financial statement which was completed. I then told D they were not offering another repayment schedule + were going to start litigation
  • They also told D that as the litigation had already started, they didn’t have the benefit of MARP.
  • Held the bank had not made every reasonable effort to agree to an alternative repayment schedule before seeking possession and thus was refused an order for repossession as a result.
43
Q

The Mortgagor’s Rights - Code of Conduct on Mortgage Arrears 2013

Freeman v Bank of Scotland [2014]:

A

But simply failing to comply doesn’t deprive a lender of its rights.

44
Q

Judgment Mortgage

What is the general framework for judgment mortgages?

A

Before LCLRA 2009, the Judgment Mortgage (Ireland) Acts 1850-1858 provided a mechanism where a creditor who got a judgment against a debtor could register it as a mortgage against land owned by his debtor,
enabling him to sell the land + satisfy the debts. Now governed by Part 11 LCLRA 2009.

45
Q

Judgment Mortgage - Creation

What was the old procedure and what does it require?

A

Previously, a creditor had to follow the procedure in ss.6-7 1850 Act:
o Had to file an affidavit sworn by the judgment creditor stating the debtor owned certain land.
o The affidavit had to contain certain details including the title of the action, the court, the full names of the parties, their titles, professions, their places of abode, the location of the lands.
o S.6 requirements have been construed strictly leading to JMs being declared invalid on technical grounds

46
Q

Judgment Mortgage - Technical Defence

General rule?

A

Irish courts have traditionally applied the ‘technical defence’ to judgment mortgages i.e. any failure to comply exactly with s.6 (no matter how minor) will result in the entire judgment mortgage being invalidated.

47
Q

Judgment Mortgage - Technical Defence

Re Murphy & McCormack [1930] - Barony

A
  • Omission of a barony in an affidavit re registered lands made it invalid.
48
Q

Judgment Mortgage - Technical Defence

Crosbie v Murphy [1858] - Incorrect personal title

A
  • JM was invalid as the judgment debtor (a hotel owner and shopkeeper) described as merely a widow.
49
Q

Judgment Mortgage - Technical Defence

Thorpe v Browne [1867] UK - Common sense - “any doubt”

A
  • UK have applied a ‘common-sense’ approach requiring the court to ask if the affidavit leaves ‘any doubt whatever’ as to the identity of the person or the lands
50
Q

Judgment Mortgage - Technical Defence

Irish Bank of Commerce v O’Hara [1989] IEHC

A
  • HC suggested the common-sense approach might be adopted, at least in relation to the omission of part of the description of land. Costello J said if it complies with the purpose of the statutory requirement, even if there’s an error, it should not automatically invalidate the judgment mortgage + no need for strict compl.
51
Q

Judgment Mortgage - Technical Defence

Allied Irish Bank v Griffin [1992] - limited O’hara (HC) to land

A
  • Denham J gave O’Hara limited interpretation: she endorsed the technical approach to s.6 requirements holding that any misdescription of the debtor’s title, trade or profession would result in invalidity of the JM whether it deceived or misled anyone or not: she limited O’Hara to misdescription of lands.
52
Q

Judgment Mortgage - Technical Defence

Irish Bank of Commerce v O’Hara [1992] IESC

A
  • In the SC appeal, Finlay CJ gave the common-sense approach to s.6 endorsement, holding he was satisfied Costello J was correct in applying the principles in Thorpe to the interpretation of s.6.
53
Q

Judgment Mortgage - Technical Defence

Ulster Bank v Crawford [1999]: - Endorsed Thorpe - LRC Recs?

A

The common-sense application was endorsed by Laffoy J in the HC.
Still no clarity on the approach. LRC said legislative clarity should be introduced + any description of unregistered land that makes it identifiable with reasonable certainty be sufficient. Also that any innocent error
re the identification of the mortgagor ought to be rectifiable.

54
Q

Judgment Mortgage - Creation

What is the second step in the old procedure and what did it require?

A

2nd step under the 1850 Act was to register a copy of the affidavit at the Registry of Deeds or Land Registry:
o S.7: Unregistered land: registration operated to transfer the land to the creditor + vested in him, subject to the debtor’s right to redeem on paying the money outstanding. Thus the creditor became a mortgagee.
o Registered Land: a JM was a registrable burden under s.69 RTA 1964 + s.71 stated registration operated to charge the interest of the debtor and conferred the creditor with rights and remedies specified by court.
o To enforce security, he sought a declaration from the court that the JM was well charged + order for sale

55
Q

Judgment Mortgage - Creation

What is the new procedure under LCLRA 2009?

A

LCLRA 2009 has replaced this complicated system with a simpler one:
o S.116: A creditor who has obtained a judgment can apply to the property registration authority in the prescribed simplified form to register a JM against that person’s estate or interest in land.
o S.117: The registration of a JM operates to charge the judgment debtor’s estate or interest with the debt and entitled the mortgagee to apply to court for an order for sale of land, or order determining the priority
of any encumbrances on the land or any other order for enforcement of the JM as court sees fit.

56
Q

Judgment Mortgage - Creation

What is required for a JM to be effective and what are its status and operation?

A

For a JM to be effective, a debtor must be beneficially entitled to the land.
o JM has same status as voluntary deed so takes effect subject to all prior unregistered legal/equitable rights
o However, a judgment creditor may be able to avoid a voluntary conveyance that was entered into after the judgment was obtained by before it was registered by establishing it was made w intention to defraud him

57
Q

Judgment Mortgage - Discharge

What happens if a JM is discharged?

A

If a judgment debtor discharges the debt, the registration of a cert of satisfaction issued by the court where the judgment was obtained operates to extinguish the JM pursuant to s.118 LCLRA 2009.
o With registered land, must apply to cancel the JM as a burden by the submission of a cert of satisfaction.

58
Q

Judgment Mortgage - Over Family Home

Containercare v Wycherly [1982]

A
  • Judgment mortgages can be created over a fam home without reference to the FHPA 1976.
  • As there would be little chance of a non-owning spouse consenting to it, s.3 consent is unworkable.
59
Q

Judgment Mortgage - Over Family Home

Bank of Ireland v Purcell [1984]

A
  • While the SC dropped a hint that it disapproved of the idea that JMs weren’t covered by the FHPA, they
    confirmed it was the law.
60
Q

Judgment Mortgage - Over Family Home

What did the LRC recommend in 2004?

A

LRC (2004) proposed some court adjudication should be engaged in before a judgment mortgage is given:
o L suggests the sale of a family home under a judgment mortgage ought not to take place without a court proceeding in which all interested parties would be heard.
o Also recommended court take into account (1) means of mortgagor (2) means of any non-debtor owners (3) means of the family of any non-debtor owner resident in the property (4) the amount of the judgment mortgage as a proportion of the property (5) ability of mortgagor to provide reasonable alternate
accommodation from the remaining monies.

61
Q

Judgment Mortgage - Over Family Home

Re A Solicitor [2004]:

A

Held a judgment mortgage over a family home is not a violation of Art 8 ECHR

62
Q

Judgment Mortgage - Over Family Home

Trinity College v Kenny [2010] - Divided between Cr + W

A
  • Sale of the family home was ordered to satisfy a JM as the wife could use a share of the proceeds of the sale to buy a suitable alternative home. Ordered the proceeds be divdied between the creditor + wife.
63
Q

Judgment Mortgage - Judgment Mortgage Over Co-Owned Properties

What provisions of the LCLRA 2009 deal with this?

A

S.30 LCLRA 2009: Registration of a judgment mortgage against the estate or interest of land of a joint tenant doesn’t sever the joint tenancy. Applies to both registered and unregistered land.
o Irwin v Deasy [2011]: SC already confirmed this in respect of registered land.
S.117: Once JM is registered, it charges the estate / interest with the debt + entitles the J mortgagee to apply to court for partition and sale under s.31 i.e. it no longer transfers the estate of the judgem debtor to the creditor
S.31(5): FHPA 1976, FLA 1995 + FLDA 1996 not affected: courts can make propertt adjustment order.

64
Q

Judgment Mortgage - Judgment Mortgage Over Co-Owned Properties

Muintir Skibbereen Credit Union v Crowley and Hamilton [2015] 2 fam’s - insufficient to buy new family homes

A
  • Two families, W’s of both Hs were never consulted re/signed docs for a business loan
  • First family: H had 3 dependent kids 6 – 13 y/o. Second: W suffering ill health.
  • Both Hs in debt and 50% of proceeds of any sale of the family homes would not provide either family with enough money to buy alternative accommodation. NO ORDERS granted.
  • It wouldn’t be appropriate as the sale proceeds left after were insufficient to buy new family homes.
65
Q

Judgment Mortgage - Judgment Mortgage Over Co-Owned Properties

Whyte v Cosgrove [2016]

A
  • HC refused, as inappropriate, to make partition order on a family home under s.31 LCLRA. Judgment creditor got a judgment re D’s debts + registered it against D’s family home D owned jointly w his wife.
  • Held the W had nothing to do with debts + was pointless to partition the house physically with a view to selling half of it. It was W’s home + evidence she would be unable to obtain alt accom not challenged.
  • O’Connor J critical of P’s approach: it’s counter-productive to seek a partition order under s.31 without some prior consultation w parties. Also held onus is on creditor to show why partition/sale appropriate.
66
Q

Judgment Mortgage - Judgment Mortgage Over Co-Owned Properties

Quinns of Baltinglass v Smith [2017]

A
  • Keane J said orders for sale can be made under s.31 even though one of joint-owners isn’t a debtor. Also held fact debtor is bankrupt + any sale proceeds unlikely to clear the debt not good reason to refuse order.

Property (12 decks)

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